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Pot legalization bill may prevent police searches of cars based on smell

When police officers approach a car they've just pulled over, the smell can be instantly recognizable – marijuana.

It’s that particular odor that law enforcement here and across the country often cite as a reason to search the vehicle.

Sometimes officers just find a small amount – a joint or a baggie – and sometimes they find other drugs and even guns that help them uncover and solve serious crimes.

But a provision in a bill sponsored by Assembly Majority Leader Crystal Peoples-Stokes that would legalize the adult use of marijuana would prohibit law enforcement from using the “odor of marijuana or of burnt marijuana” as probable cause to conduct a search, seize possible evidence or make an arrest or detain someone.

The idea is that if cannabis becomes legal, then its smell should be, too.

The provision alarms law enforcement officials, who say the change would affect how police do their work.

“If you eliminate the possibility of not being able to search the car at that point, you are going to potentially lose out on the ability to procure evidence,” said Erie County District Attorney John Flynn. “If that language is in it,” Flynn said of the legislation, “I’ve got a problem with that.”

Paul Dell, a defense attorney who said he handles at least 100 such gun cases every year, said he has mixed feelings about what would happen if a law passes with the provision restricting the smell of marijuana as a probable cause.

Most of the cases, he said, start with a police officer pulling over someone for a traffic violation. Then the officer says he smells marijuana in the vehicle and searches the vehicle and turns up a gun.

“The lawyer in me says this is wrong,” Dell said. “They don’t do these stops on Nottingham Terrace,” he said, referring to the mansion-lined street across from Delaware Park.

People who live outside of the East and West sides may not realize "how intrusive the typical traffic stop is," Dell said. He said police doing such searches don't seem too interested in marijuana. "My clients tell me that, very often, if marijuana is all that is found, the cops merely take it and let them go."

However Dell said he knows these searches sometimes turn up illegal weapons. “Some people call it a flagrant violation of rights and others call it good police work.”

John Curr III, director of the Western Regional Office of the New York Civil Liberties Union, supports prohibiting police from using the smell of marijuana for car searches.

“Law enforcement should only be stopping people if they have reasonable suspicion regarding a crime, and under the Marijuana Regulation and Taxation Act, the possession and personal use of marijuana will no longer be a crime,” Curr said in a statement. “Disproportionate targeting of people of color for marijuana possession has devastated communities. It is time for that to end. Legalizing marijuana, undoing the harm of past convictions, and ensuring the revenue is invested in communities of color is the best path forward to ensure justice.”

Case law

Earlier this spring, New York appeared to be on the verge of legalizing adult use of cannabis with both Gov. Andrew M. Cuomo and the Democratic-controlled Legislature seeming to support it. But with many differences between Cuomo’s proposal for legalization in his budget bill and the bill championed by Peoples-Stokes, D-Buffalo, it ended up being left off the budget negotiating table. Now legislators are working on a new version expected to be more closely aligned with Cuomo’s that may be introduced this week.

The district attorney said he understands the underlying idea behind prohibiting the use of smell to justify a search of a car.

But legalizing the recreational use of marijuana doesn’t mean all marijuana would be legal, he said. There would be restrictions, for instance, on how much marijuana a person could legally possess.

“You can’t have 100 pounds of marijuana in the trunk,” Flynn said.

It would also still be illegal to smoke cannabis while driving, just as drinking alcohol while driving is against the law. Under the Assembly bill, an officer who suspects the driver is impaired can use the smell of marijuana as a basis to search the car.

Now, police often conduct searches of vehicles based on detecting the smell of marijuana. In New York, an officer doesn’t need a warrant if the officer detects the odor of marijuana in a vehicle.

“That’s case law,” Flynn said.

And it can lead to the discovery of other drugs and guns, Flynn said.

“It’s a routine event, especially in the City of Buffalo,” Flynn said.

Just last week, Flynn’s office announced that 23-year-old Brand Brailey-Brooks of Buffalo pleaded guilty to a felony count of attempted criminal possession of a weapon.

Prosecutors said that on the night of Aug. 28, Brailey-Brooks was pulled over by a Buffalo police officer on Suffolk Street and Hempstead Avenue.

“As the officer approached the vehicle, he smelled the odor of marijuana and asked the defendant and his passenger if they had been smoking,” according to a news release about the case. “The defendant provided the officer with a small bag of marijuana, and the officer asked the defendant to step out of the vehicle.”

As Brailey-Brooks got out the vehicle, he ran from the officer, prosecutors said. He was taken into custody on Ruspin Avenue, and officers found a loaded, semi-automatic pistol in a driveway nearby.

A spokesman for Peoples-Stokes said she would not comment on the provision restricting marijuana odor as probable cause.

"Unfortunately, the majority leader is not commenting at this time on law enforcement using the 'smell of marijuana' to conduct a search," said spokesman Kevin Jolly. "Assemblywoman Peoples-Stokes remains committed to social justice, which is a key part of MRTA. Lawmakers are still working on the details of the amended legislation which could be presented sometime next week."

Driving impaired

Thomas H. Burton, an attorney who represents the Buffalo police union, pointed out that judges often required a strong smell of marijuana, “more than just a passing whiff,” to justify a search.

Buffalo Police Commissioner Byron Lockwood said such a change in the law would definitely affect how officers handle searches.

“I’m very concerned,” he said of the provision.

Law enforcement agencies are already starting to make changes in preparation.

In Buffalo for instance, the Buffalo Police aren’t going to take on new K-9 dogs trained to sniff out marijuana. At the same time, they are training officers to become drug recognition experts to handle cases of suspected driving while impaired under the influence of marijuana.

Peoples-Stokes told reporters Thursday that she has heard from law enforcement officials who are mostly concerned about people driving under the influence of marijuana.

“But once you figure out how to get them the resources they need to get the additional training to see if people are impaired while driving, they feel a little more comfortable about it,” she said. “If there is a $2 billion underground industry in New York right now – and that’s probably a conservative estimate – there probably are some people already driving around while impaired that we know nothing about. So, to suggest that this is going to be a new problem is not actually accurate. This is going to be an existing problem and this actually will help the law enforcement be able to begin to deal with it.”

Staff Reporter Harold McNeil contributed to this article.

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